Menandbhai Punjabhai Odedara vs State Of Gujarat
2021 Latest Caselaw 18517 Guj

     C/SCA/17725/2021                              ORDER DATED: 17/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 17725 of 2021

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                        MENANDBHAI PUNJABHAI ODEDARA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                               Date : 17/12/2021

                                ORAL ORDER

With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final disposal.

2. Issue rule, returnable forthwith. Mr. Krutik Parikh, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondent no.1.

3. By this petition, the petitioner has prayed for release of the Truck bearing Registration No. GJ-25-U-4563 (hereinafter referred to as the 'vehicle').

4. The facts are to the effect that the petitioner is the owner of the vehicle. On 20.10.2021, the respondent no. 3, has seized the vehicle and the custody was handed over to the respondent No. 2 followed by the issuance of the seizure memo on 20.10.2021. The ground on which the vehicle was detained was the overloading with ordinary sand.

C/SCA/17725/2021 ORDER DATED: 17/12/2021

4. It is the case of the petitioner that on 26.10.2021 notice was issued by the respondent no. 2 inter alia indicating that while transporting, the vehicle was caught on the alleged ground of illegal transportation of ordinary sand. By the said notice it has been required of the petitioner to pay penalty of Rs. 2,85,753/- for total 36.15 metric ton of ordinary sand. The petitioner thereafter made a representation however, of no avail. Being aggrieved, the petitioner has filed the captioned writ petition.

5. Ms. Kruti Shah, learned Advocate appearing for the petitioner has submitted that the seizure memo was issued on 20.10.2021 followed by issuance of the show cause notice dated 26.10.2021 by the Office of the Geology and Mining Department. It is also submitted that after the issuance of the notice, the petitioner submitted a reply on 27.10.2021 inter alia informing that the driver of the vehicle was asked to provide the royalty pass at around 1:30 A.M. however, it was presumed by the officer concerned that the vehicle was illegally transporting the ordinary sand during midnight therefore imposed the penalty of Rs. 2,85,753/-. It is the case of the petitioner that the petitioner, was having a valid royalty pass which was valid upto the morning of the next day and therefore, the stand of the respondent authority in issuing the notice was illegal and bad. It is also submitted that the period of 45 days has come to an end however, no complaint has been filed as required under the provisions of sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (hereinafter referred to the 'Rules of 2017'). It is therefore submitted that the issue stands covered by the judgment of this Court in the case of Nathubhai Jinabhai Gamara vs. State of

C/SCA/17725/2021 ORDER DATED: 17/12/2021

Gujarat, rendered in Special Civil Application No.9203 of 2020. It is therefore urged that the vehicle be released.

6. On the other hand, Mr. Krutik Parikh, learned Assistant Government Pleader, has fairly conceded that the seizure memo was issued in the month of October,2021 followed by issuance of the notice and further followed by the order dated 04.12.2021 passed by the Office of the Geology and Mining Department. It is also conceded that no FIR as contemplated under the provisions of the Rules of 2017 has been filed upon expiry of the 45 days. It is therefore urged that let the appropriate orders be passed. Mr. Parikh, learned Assistant Government Pleader after taking instructions, has tendered the order dated 04.12.2021 passed by the Office of Geology and Mining Department. It is urged that so far as the order is concerned, the petitioner be directed to avail of the alternative remedy of appeal under the provisions of the Rules of 2017.

7. Ms. Kruti Shah, learned Advocate has stated before this Court that the petition be entertained for the limited purpose of the release of the vehicle. So far as the order is concerned, the petitioner shall avail of the remedy of filling an appeal.

8. Heard the learned advocates appearing for the respective parties and perused the documents available on the record.

9. Pertinently, the vehicle of the petitioner was seized somewhere in the month of October, 2021 wherein it has been alleged that the vehicle, was found with ordinary sand in excess which led to the issuance of the seizure memo and thereafter notice on 26.10.2021 requiring the petitioner to pay the penalty of Rs.

C/SCA/17725/2021 ORDER DATED: 17/12/2021

2,85,753/-. After the issuance of the notice, the office of the Geology and Mining Department has passed the order dated 04.12.2021 whereby the petitioner has been directed to make a payment of Rs. 2,85,753/-.

10. As has been fairly conceded by the learned Assistant Government Pleader that though 45 days are over no complaint has been filed and therefore the issue stands covered by the judgment in the case of Nathubhai Jinabhai Gamara (supra) wherein it has been held and observed that on expiry of 45 days and in absence of any complaint filed by the respondent authority the detention of the vehicle would be without authority of law.

11. This Court, in paragraphs 7, 10 and 11 has held and observed thus:-

"7. Pertinently the competent authority under Rule 12 is only authorized to seize the property investigate the offence and compound it; the penalty can be imposed and confiscation of the property can be done only by order of the court. Imposition of penalties and other punishments under Rule 21 is thus the domain of the court and not the competent authority. Needless to say therefore that for the purpose of confiscation of the property it will have to be produced with the sessions court and the custody would remain as indicated in sub-rule 7 of Rule 12. Thus where the offence is not compounded or not compoundable it would be obligatory for the investigator to approach the court of sessions with a written complaint and produce the seized properties with the court on expiry of the specified period. In absence of this exercise, the purpose of seizure and the bank guarantee would stand frustrated; resultantly the property will have to be released in favour of the person from whom it was seized, without insisting for the bank guarantee.

10. The bank guarantee is contemplated to be furnished in three eventualities: (i) for the release of the seized property and (ii) for compounding of the offence and recovery of compounded amount, if it remains unpaid on expiry of the specified period of 30 days; (iii) for recovery of unpaid penalty. Merely because that is so, it cannot be

C/SCA/17725/2021 ORDER DATED: 17/12/2021

said that the investigator would be absolved from its duty of instituting the case on failure of compounding of the offence. Infact offence can be compounded at two stages being (1) at a notice stage, within 45 days of the seizure of the vehicle; (2) during the prosecution but before the order of confiscation. Needless to say that for compounding the offence during the prosecution, prosecution must be lodged and it is only then that on the application for compounding, the bank guarantee could be insisted upon. In absence of prosecution, the question of bank guarantee would not arise; nor would the question of compounding of offence.

11. The deponent of the affidavit appears to have turned a blind eye on Rule 12 when he contends that application for compounding has been dispensed with by the amended rules inasmuch as; even the amended Rule 12(b)(i) clearly uses the word "subject to receipt of compounding application". Thus the said contention deserve no merits. Thus, in absence of the complaint, the competent authority will have no option but to release the seized vehicle without insisting for bank guarantee. There is thus a huge misconception on the part of the authority to assert that even in absence of the complaint it would have a dominance over the seized property and that it can insist for a bank guarantee for its."

It has been held that it would be obligatory for the investigator to approach the Court of Sessions with a written complaint and produce the seized properties with the Court on expiry of the specified period. In absence of such exercise, the purpose of seizure and the bank guarantee would stand frustrated; resultantly, the property will have to be released in favour of the person from whom it was seized, without insisting for the bank guarantee.

12. Under the circumstances, the action of the respondent in detaining the vehicle after the expiry of 45 days without any complaint being filed is not in conformity with the provisions of sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Rules of 2017, therefore, deserves to be quashed and set aside and is

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accordingly, quashed and set aside. The respondent, is directed to forthwith release the vehicle. So far as the order dated 04.12.2021 passed by the office of the Geologist, Geology & Mining Department is concerned, it will open to the petitioner to file an appeal against the said order.

13. Needless to say that the Appellate Authority, shall decide the appeal strictly in accordance with law and without being influenced by the observations made in the present order inasmuch as, the present writ petition, has been entertained only for the limited purpose of releasing the vehicle, on the ground that no complaint has been filed and the issue stands covered by the judgment of this Court in the case of Nathubhai Jinabhai Gamara (supra).

14. It is also clarified that it will be open to the authorities to initiate any proceedings for recovery, if permissible and in accordance with law.

15. In view of the aforesaid, the petition succeeds and is accordingly allowed. Rule is made absolute to the aforesaid extend. No order as to costs. Direct service is permitted.

(SANGEETA K. VISHEN,J) SINDHU NAIR